Legal Motion in Response to Defendant Trying to Overturn Our Verdict
Note to Attorneys: This is a draft of a response to a Defendant’s motion for new trial. This motion was never filed because the case resolved before our response was due. We generally do not include draft motions but include this because it covers a number of issues of importance to responding post-trial motions. It is a long fight to get a great verdict. You need to make sure you keep it.
IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
MARY McGINNIS - Plaintiff
RELIABLE ROOFING, INC - Defendant,
CASE NO. 24-C-01-000894Plaintiff’S Response to Defendant’s Motion for New Trial
Plaintiff, Mary McGinnis, by and through her attorneys, Laura G. Zois and Ronald V. Miller, Jr. and responds to the Defendants’ Motion for New Trial and respectfully requests that the Court deny the Defendants’ motion in its entirety.
Trial judges are given the broadest range of discretion when asked to consider whether “justice has been done” in determining whether to grant a new trial. Buck v. Cam’s Broadloom Rugs, Inc. 328 Md. 51, at 57 (1992); See also Owens-Corning Fiberglass Corp. v. Baltimore City, 108 Md. App. 1 (1996). The decision on a motion for new trial is reviewed for abuse of discretion, and an appellate court will rarely disturb the ruling. Buck, 328 Md. at 57. The Court of Appeals has stated that “[w]e know of no case where this court has ever disturbed the exercise of the lower court’s discretion in denying a motion for trial because of inadequacy or excessiveness of damages. “ Kirkpatrick v. Zimmerman, 275 Md. 215, 218 (1970).
- THE DEFENDANTS’ ARE NOT ENTITLED TO A NEW TRIAL BASED ON THE COURT’S RULING TO PRECLUDE EVIDENCE REGARDING THE POSTURE OF THE PLAINTIFF’S SUBSEQUENT ACCIDENT
- BACKGROUND FACTS OF CASE
- THE COURT’S PRECLUSION OF THE ADMISSIBILITY OF THE LAWSUIT REGARDING THE SECOND ACCIDENT
- THE WAS NO PREJUDICE TO THE DEFENSE BY THEIR INABILITY TO CROSS-EXAMINE THE PLAINTIFF AND HER EXPERTS WITH THE COMPLAINT FILED IN THE SECOND ACCIDENT
- APPLICABLE LAW GOVERNING ADMISSIBILITY OF THE SECOND LAWSUIT
- THE JUDGMENT WAS NOT EXCESSIVE AND THE DEFENDANTS ARE NOT
ENTITLED TO A NEW TRIAL ON THE ISSUE OF DAMAGES
- AWARD FOR FUTURE MEDICAL TREATMENT
- PAST LOST WAGES
- STANDARD OF REVIEW FOR THE COURT
- THE APPROPRIATE RELIEF WOULD BE REMITTITUR NOT A NEW TRIAL
The Plaintiff, Mary McGinnis suffered injuries in an auto accident on February 20, 1998 when she was rear-ended by the Defendant, Gregory Volker, while acting within the scope of his employment for Defendant, Reliable Roofing, Inc. As a result of the auto accident, the Plaintiff sustained injuries, including a herniated disc in her neck that requires surgical intervention. The Plaintiff was also involved in a subsequent accident on August 28, 1998 and sustained an injury to her lower back. However, the Defendant contends at trial that the Plaintiff’s herniated disc in her neck and need for future treatment was caused by the second accident.
The Plaintiff’s previous attorney, E. Thomas Maxwell, Jr., filed a complaint on behalf of the Plaintiff for her second accident in Anne Arundel County Circuit Court. However, after the undersigned attorney became involved in both of these cases, it was painfully obvious that the lawsuit pending in the Circuit Court for Anne Arundel County for the second accident, should have been filed in District Court. In the second accident, the Plaintiff’s medical specials were less than $1,500 for treatment regarding a minor lower back strain. She did not claim any permanent impairment as a result of the second accident, she was only off work for one week, and she had very little treatment and completely recovered within four months.
By the time the undersigned attorney became involved in the case, the statute of limitations had passed. After discussions with the Plaintiff regarding the status and posture of the lawsuit regarding the second accident, the decision was made to dismiss the second lawsuit. In an abundance of caution, the undersigned attorney obtained an agreement from the attorney defending the second lawsuit to waive the statute of limitations defense for one year from the date of the dismissal.1 The discussions between the Plaintiff and her counsel regarding the decisions to dismiss the lawsuit and retain the right to re-file her suit involved attorney- client privileged communications including the merits of the second case.
Prior to the beginning of the trial, the Court heard motions in limine regarding the posture of the second lawsuit. It is agreed by all parties that the suit was dismissed and the right to re-file was preserved for one year from the date of dismissal. The Defendants sought to introduce evidence regarding the fact that the Plaintiff filed a lawsuit for her second accident and had the right to re-file the lawsuit. The Plaintiff argued that the posture of the lawsuit regarding the second was irrelevant, however, the facts of the accident, the injuries sustained, and the damages incurred were fair game. Plaintiff’s counsel also argued that if the jury was told that the Plaintiff reserved the right to re-file her lawsuit, counsel would have to testify to matters that were protected by the attorney-client privilege and the undersigned would be implicated as a witness. Furthermore, the jury would not be able to fully comprehend statute of limitations and dismissals, nor should they have to understand to decide the merits of this case.
The Court properly ruled that the posture of the lawsuit for the second accident was irrelevant to the issues for the jury to decide. The Court further opined that any probative value would be outweighed by the prejudicial effect to the Plaintiff.
Court gave free rein to the Defense attorney to cross-examine the Plaintiff and her doctors regarding the facts, injuries, damages and lost wages relative to the second accident.
The Defendants’ attorney vigorously cross-examined the Plaintiff about the facts of the second accident, the property damage from the second accident, her medical treatment, her injuries and her lost wages following the second accident. The defense also vigorously cross-examined the Plaintiff’s expert witnesses with the same extensive details regarding her second accident.
After reviewing the Defendant’s motion for new trial, it is apparent that the only piece of evidence they were precluded from introducing or using for impeachment purposes was the Plaintiffs Complaint that was filed in her second accident which states “serious injuries about her head, body and limbs.” It is noteworthy to mention that the language used does not state she made a claim for injuries to her “neck ,” nor does it state “back” which was the injury she sustained. The language was simply boilerplate language.2
During discovery, the Defendants went on a wild goose chase to find some shred of evidence that the Plaintiff claimed a neck injury in the second accident. The best they could come up with identical dismissed complaints that claim “serious injuries about her head, body and limbs.”
The Defense’s protracted argument that this pleading is some how an admission against interest to support their contention she injured her neck in the second accident is a stretch at best.
The Defendants subpoenaed the claim file from the insurance company involved in the second accident. (See attached hereto Exhibit “B” Defendant’s deposition duces tecum). The Defendants also attempted to subpoena the attorney defending the second accident, John Stebenne to the trial of this matter. (See attached hereto as Exhibit “C”, correspondence from John Stebenne, dated November 22, 2002).
As Mr. Stebenne clearly pointed out to Defense Counsel:
As I told you in our phone call today, if you were to ask me to say that on direct examination, plaintiff attorney would have the full right to ask me on cross-examination why I agreed to the 1-year extension. I would truthfully respond that, based on my understanding of the medical records and facts of the 2 accidents, that I had nothing to lose since all of the plaintiff’s injuries were caused by the accident involving your client.
First, the pleading filed was not a “statement” as defined by the Maryland Rule 5-803(a). It was not a statement made by her, nor was it a document adopted by her or signed by her. Furthermore, it was a pleading that she dismissed and arguably disavowed. Not to mention the fact that the document does not even state that she claimed an injury to her neck.
The Defendants did not suffer any prejudice because they were unable to cross-examine the Plaintiff with these documents. The best piece of evidence the defense had that the Plaintiff claimed an injury in her neck as a result of the second accident was the hospital record from North Arundel Hospital. The defense spent an inordinate amount of time in exhausting detail with every witness about this medical report.
Furthermore, the defense acknowledges that they jury knew the Plaintiff hired an attorney after both accidents. The defense also acknowledges that the jury probably knew that the Plaintiff was pursuing claims relating to the second accident even though it was not introduced into evidence. The Defense claims that since the jury asked a question about when a lawyer was hired it must have been important to them, and thus should be admissible. However, the Court, not the jury, determines what is important and what is admissible.
The defense also expresses concern about a potential fraud on the Court should Ms. Raleigh intend to pursue a claim for permanent injuries for her second accident. After testifying consistently at trial, in depositions, and by way of interrogatories, the Plaintiff has claimed the first accident injured her neck. Furthermore, all of her treating doctors are of the opinion she injured her neck in the first accident. What the Defendants repeatedly fail to recognize is that the Plaintiff would be dramatically impeaches since on every given occasion she has testified consistently that she did not injure her neck in the second accident.
Maryland Rule 5-402 states that relevant evidence is generally admissible and irrelevant evidence inadmissible. In this case, the issues before this court were liability and damages for an automobile accident which occurred on February 20, 1998. The posture of a lawsuit, or even the fact that the Plaintiff filed another lawsuit or made a claim is not relevant to this case. Judge Smith was proper in her ruling that the lawsuit and the posture of the lawsuit for the Plaintiff’s second accident was irrelevant and inadmissable.
However, assuming arguendo, that the lawsuit was relevant, Maryland Rule 5-403 states that even when evidence may be relevant, it may also be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. In the present case, the admissibility of the second lawsuit, would at the very least would confuse the issues and waste time. The evidence may also lead to undue prejudice upon the Plaintiff for filing another lawsuit.
Furthermore, in order for the jury to fully understand the reasons behind the Plaintiff’s decision to dismiss her lawsuit and her attorney’s intention to maintain the right to re-file within one year of the dismissal, would require an explanation from the Plaintiff which would include conversations with her attorney, and those conversations are protected by the attorney-client privilege. The explanation would also implicate the undersigned as a witness on why the Attorney did not dismiss with prejudice and reserved the right to re-file the suit within one year.
The Defense directs this Court’s attention to the case of Martin v. State, 364 Md. 692 (2001). This case is clearly distinguishable from the facts of this case. Martin, was a criminal case involving a police officer who was accused of taking money from a private citizen. The private citizen was testifying at the trial as the State’s witness and had also consulted with a lawyer about a civil case arising out of the same incident. The Defense attorney was precluded from asking the witness about his lawsuit against the Defendant. The Court held that the Defendant in a criminal trial has his 6th Amendment Right to confront and cross-examine witnesses.
The Court held that the fact that the State’s witness may have been motivated by money to testify instead of his “altruistic interest generated solely by motives in the public interest” was legitimate cross-examination. In this case underlying case involved a Defendant’s right to confrontation and a civil suit arising out of the same set of circumstances. (emphasis added).
The other case cited by the was Morris v. Weddington, 320 Md 674 (1990). The facts of that case are also clearly distinguishable and not close to being on point in this case. Morris, involved the personal injuries of a minor child. During the course of the trial a witness blurted out that the Defendant was uninsured. Thereafter the jury informed the Court that the lack of insurance would have bearing on the decision in damage. After the Court informed the jury that they should not consider such things, the jury propounded three specific questions all dealing with insurance coverage. Ultimately the jury returned a very low verdict in favor of the Plaintiff. The Court of Appeals determined the jury was contaminated by the lack of insurance comment and a mistrial was appropriate.
The defense has failed to provide this Court with any authority that the posture of the lawsuit for the second accident had any bearing or relevance in the issues before the jury during the course of the trial and the exclusion of that information warrants a new trial.
The defense asserts that the jury’s award for future medical treatment of $20,000.00 and past lost wages of $14,000.00 was excessive and not based on evidence presented at trial. This is incorrect. As for the future medical expenses, the Plaintiff, in discovery, claimed that the Plaintiff’s future medical expenses for the surgery would be $15,000.00. Additionally, Dr. Smith opined that she had a permanent injury to her neck, even if she had the surgery. The Plaintiff’s life expectancy was for another 32 years. Dr. Smith also testified that the Plaintiff would need therapy after the surgery even though he did not quantify the cost.
The jury could have awarded the Plaintiff the additional $5,000.00 in anticipation of future medical treatment over the course of her life for the next 32 years, which would average $156.25 a year for the rest of her life for medical treatment. The jury may also have used Dr. Brager’s bills for physical therapy to determine an appropriate amount for her to have post surgical physical therapy. Or, the jury could have, based on their own personal experiences, could have considered Dr. Smith’s approximate cost to be conservative.3
The testimony solicited from the Plaintiff’s attorneys regarding past lost wages was as follows: (1) the Plaintiff earned approximately $450.00 a week on average at the time of the accident; (2) the Plaintiff had disability slip through April 16, 1998; (3) as of April 1, 1998 Dr. Gordon advised her she could try to go back to work; (4) the Plaintiff testified she was never able to go back to stying hair full-time; (5) in closing the Plaintiff asked for 7 weeks of past wages in the amount of $3,150.00.
On cross-examination of the Plaintiff, the Defendants’ attorney brought out that the Plaintiff earned, 10,187.00 in 2001. On re-direct after opening the door, Plaintiff testified to her income tax’s from 1994 through 2000 as follows:
1994 - 11,945.06
1995 - 12,297.82
This testimony clearly demonstrated a loss of past earnings. Using her income level pattern before the accident as a bench mark, it is clear she lost past wages. The jury, more likely than not, used her past income tax returns to make a past lost wage award. It is interesting to note that the Defendant’s attorney opened the door for this testimony. It appears as though the jury came to the $14,000 amount by using the Plaintiff’s earned income in 1997 of $10,794.88 as a base line. Accordingly in 1998 she lost $-5,035.63, in 1999 she lost $-2,909.49, and in 2000 she lost $-6,505.88. By adding up the losses from 1998 to 2000, you get to $14,451.00.
The Plaintiff also testified that she lost one week from work following the second accident and she earned $450.00 a week. It appears as thought the Jury took this into consideration and credited the Defendants for the week she lost from the second accident. The evidence clearly demonstrates how the jury arrived at the past lost wages almost to the penny.
The standard for the trial judge in determining whether a new trial should be granted on the grounds of an excessive verdict, is whether or not the verdict is “grossly excessive,” or “shocking to the conscience of the court,” or “outrageously excessive,” or even simply “excessive.” See Conklin v. Schillinger, 255 Md. 257 at 69 (1969). Appellate Courts will review the sufficiency of evidence in the light most favorable to the prevailing party in cases involving excessive or insufficient jury awards. Accord Safeway Stores, Inc. v. Barrack, 210 Md. 168 (1956); State Roads Com. v. Wood, 207 Md. 369 (1955); Baltimore v. Smith & Schwartz Brick Co., 80 Md. 458 (1895).
“A jury’s verdict should not be causally overturned.” Buck, 328 Md. 51 , at 60 quoting Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504, 508 (1987). As long as there are basic facts supporting the jury’s verdict, it should not be disturbed. Id at 328 Md. 51, at 60-61. (1992).
Assuming arguendo, that the Court found the awards for past lost wages and future medical expenses to be grossly excessive, the appropriate relief would be to enter a remittitur on the past lost wages and future medical expenses, not to award the Defendant a second shot at the trial in its entirety when the only portions of the verdict they contend are excessive can be easily remitted with little speculation or guess work. The Defendant challenge the base amount of $15,000 for future medical expenses, nor does he challenge to past lost wages in the amount of 2,791.04.4
If the Court was persuaded that the verdict is excessive and is not based on any evidence presented at trial , then the appropriate remedy would be to enter a remittitur in the amount of $5,000 for future medical expenses and $10,850.00 for a total reduction in the verdict by $15,850.00.
The trial court was correct and did not abuse its discretion and commit reversible error when it ruled that the posture the Plaintiff’s subsequent lawsuit filed in a subsequent accident was not relevant. Furthermore, the trial court was correct in its ruling that if arguably relevant, its admissibility would cause confusion to the jury, on balance would unfairly prejudice the Plaintiff, and would require the Plaintiff to reveal conversations protected by the attorney-client privilege. The inability of the Defendants to cross-examine the Plaintiff and her experts with the Complaints filed in the subsequent accident did not result in any prejudice to the Defendants. Additionally, the jury’s awards for past lost wages and future medical expenses are supported by the evidence and should stand. Should the Court find the awards for past lost wages and future medical expenses not supported by the evidence, the remedy to the Defendants would be a remittitur.
WHEREFORE, the Plaintiff, Mary McGinnis, respectfully requests that the Defendants’ Motion for New Trial be denied in its entirety.
MILLER & ZOIS, LLC
Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
Attorney for the Plaintiff
2 The Defendants’, during the course of the trial, never approached the Court with the Complaints from the second accident at any time nor did they ever seek to introduce the Complaints from the second accident.